Jeremy D. Morley concentrates on International Family Law. The firm works with clients around the world from its New York office, with a global network of local counsel.
Mr Morley is the author of "International Family Law Practice", the leading treatise on international family law in the U.S., and "The Hague Abduction Convention", published by the American Bar Association. He is a Fellow of the International Academy of Matrimonial Lawyers and a former law professor.

Thursday, March 21, 2013

Effective March 18, 2003, there has been
a major change in the marriage laws of British Columbia, Canada. The new Family
Law Act is now in full force and effect. It replaces the Family Relations Act.

Couples of the same or opposite
gender who are in a “marriage-like” relationship for more than two years are
treated as “spouses” for the purposes of the law and are subject to the same
property-division rules as married people.

In addition, family property now
includes all property owned by one or both spouses at the date of separation
unless the asset is excluded, in which case only the increase in the value of the
asset during the relationship is divisible. Whether an asset is used for a
family purpose is no longer relevant in deciding if it is family property.

Friday, March 15, 2013

Japan has
not yet ratified the Hague Abduction Convention. The Japanese Cabinet has today
reportedly approved the ratification but the necessary legislation has not yet
been passed by the Japanese Diet (Parliament).

The issue of
Japan’s joining the Hague Convention is still controversial in Japan. Many
members of the Diet are flatly opposed to the treaty on the ground that it will
lead to the imposition of “Western thinking” on family relationships in Japan, i.e.
that it might lead to the intervention of the courts into the private life of
families, to the issuance of judicial orders concerning family matters that can
be enforced by the power of the state, and to both parents having meaningful
rights to their children after a divorce or separation.

Accordingly,
newspaper editorials in Japan have demanded that, when Japanese wives “flee”
foreign countries because of alleged domestic violence abroad, they must not be
forced to return to the country where such abuse has occurred.

Such concerns
have already led to inclusion of a provision in the draft legislation that is most
likely to lead to an unnecessarily broad interpretation of the “grave risk”
exception in Article 13(b) of the Convention.Indeed, that is the intended result.

The result
of such an exception would be to shield abductors who are able to claim
domestic abuse even though:

(a) The legal system
in the (American) habitual residence would provide an abuse victim and child
with very substantial protection;

(b) No change is being made in Japan to the lack of any
meaningful provisions in Japanese law for the other parent to have any access to
the child or any decision-making role in the life of the child, so that in
reality the foreign left-behind parent would still be without any meaningful rights
to the child; and

(c) There is no meaningful system within Japan to effectively
determine the merits of such claims of abuse.

In addition, there is a serious concern that petitioning
parents will be forced into mediation before being allowed to proceed with or complete their judicial case. There are special provisions in the draft
legislation promoting mediation. If the mediation process works similarly to
the current Family Court mediation process it will lead to lengthy delays and
extreme unfairness to petitioning parents.

Mediation is generally an extremely unhelpful
forum for foreigners in family law cases in Japan, since (i) foreign parties must appear in
person regardless of their place of residency, (ii) the sessions are usually
short and are repeatedly adjourned for lengthy periods of time, necessitating
multiple inconvenient and expensive visits to Japan, (iii) the foreigners’
views are generally misunderstood for language and cultural reasons, and (iv) the foreigners are pressured to
accept unfair terms since there is no enforcement of court decisions in family
law matters in Japan and because they are told that their refusal to accept the
mediators’ recommendations will be held against them in a trial.

When most
other countries have joined the Convention the United States could choose whether
or not to accept the accession. If a country has not enacted satisfactory
legislation designed to effectively enforce the terms of the Convention other
countries need not accept the accession. Such is the case with Thailand, which
acceded to the Convention in 2002 but has not yet enacted implementing legislation
satisfactory to the United States or several other countries. By contrast, as an original member of the Hague
Conference, Japan will not be acceding to the Convention, but will ratify it
which will trigger its immediate entry into force without any place for
international review.

Meanwhile, the Japanese
public is being told that even if Japan signs the Convention, “The return of a child can be denied if the parent
seeking it is believed to abuse the child or have difficulties raising him or
her.” Daily Yomiuri, Mar. 16, 2013. If that is the gloss that Japan intends to put
on the Hague Convention – even though the Convention is expressly designed to
secure the expeditious return of all abducted children except in extremely
unusual cases – there is little or no point in Japan’s purported ratification
of the treaty.

The result
of Japan’s ratification of the Convention will likely be to create the
appearance of Japan’s compliance with international norms but without any of the
substance.

About Me

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from New York , with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice," the leading treatise on international family law in the United States. He is also the author of “The Hague Abduction Convention: Practical issues and Procedures for Family Lawyers.” He is the former co-chair of the International Family Law Committee of the International Law Section of the ABA. He is a member of the International Academy of Matrimonial Lawyers. He was born in Manchester, England and has taught in law schools in the United States, Canada and England. Mr. Morley frequently lectures on international family law topics to the judiciary, bar associations and others. Mr. Morley is frequently asked to appear as an expert witness on international child abduction prevention and recovery issues. Mr. Morley has been a frequent guest on television and radio shows on the topic of international child abduction and international divorce law and has been featured in the print media on numerous occasions.